IMPORTANT POINT
Offence under S. 138 of NI Act made out when cheque dishonoured and returned unpaid by Bank, either because of amount of money standing to credit of account insufficient to honour cheque or it exceeds amount arranged to be paid from that account by agreement made with bank.

Akhtar Husain Khan, J.—Present petition has been moved under Section 482 Cr.P.C. by accused-petitioner Rajendra Pratap Singh with prayer to quash the proceedings of Case No.2468 of 2010 Gangeshwar Mahadevji Trust vs. Rajendra Pratap Singh, under Section 138 of Negotiable Instruments Act pending in the Court of Additional Chief Judicial Magistrate (Ayodhya Prakaran), Lucknow.

2. I have heard learned counsel for petitioner and learned Additional Government Advocate. None appeared for opposite party No.2, even after list was revised.

3. Perusal of copy of complaint annexed with petition shows that both the cheques in question have been returned to complainant by Bank unpaid with endorsement that the drawer of the cheque has restrained payment. It has been alleged by learned counsel for the petitioner that the area of land agreed to be transferred by opposite party no.2 complainant (Gangeshwar Mahadevji Trust) was found lesser than the area shown to be transferred by opposite party No.2. Therefore, petitioner has instructed, Bank not to honour both cheques in question. Learned counsel for the petitioner contended that offence under Section 138 of Negotiable Instruments Act is made out only when cheque is dishonoured because of insufficiency of amount in the account of drawer. Learned counsel for petitioner contended that it is apparent from Section 138 of Negotiable Instruments Act that no offence is made out if payment has been stopped on the instructions of drawer.

4. Learned Additional Government Advocate contended that summoning order passed by Magistrate is revisable. Therefore, no interference is justified under Section 482 Cr.P.C.

5. I have considered the submissions made by learned counsel for the parties.

6. In the case of Dhariwal Tobaco Products Ltd. v. State of Maharashtra, 2008 Law Suit (SC) 1853; Hon’ble Supreme Court has held that alternative remedy is no bar for invoking jurisdiction under Section 482 Cr.P.C. in appropriate cases.

7. In view of above judgment of Hon’ble Supreme Court this petition under Section 482 Cr.P.C. cannot be rejected merely on the ground that summoning order passed in the case is revisable.

8. Perusal of Section 138 of Negotiable Instruments Act shows that offence under Section 138 of Negotiable Instruments Act is made out only when the cheque is dishonoured and is returned unpaid by Bank either because of the amount of money standing to the credit of account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank.

9. In the case of M/s Modi Cements Ltd. v. Kuchil Kumar Nandi, AIR 1998 SC 1057; Hon’ble Apex Court has made certain observations after having considered Sections 138 and 139 of Negotiable Instruments Act. Relevant paras 18, 19, 20 and 21 of judgment of Hon’ble Court are quoted below:

“(18) The aforesaid propositions in both these reported judgments, in our considered view, with great respect are contrary to the spirit and object of Sections 138 and 139 of the Act. If we are to accept this proposition it will make Section 138 a dead letter, for, by giving instructions to the Bank to stop payment immediately after issuing a cheque against a debt or liability the drawer can easily get rid of the penal consequences notwithstanding the fact that a deemed offence was committed.........

(19) Section 138 of the Act is a penal provision wherein if a person draws a cheque on an account maintained by him with the Banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part of any debt or other liability, is returned by the Bank unpaid, on the ground either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence. The distincti